FILED

United States Court of Appeals

Tenth Circuit

January 6, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 08-3232
(D.C. No. 2:92-CR-20063-02-JWL)
(Dist. Kan.)

v.
LEALON MULDROW,
Defendant-Appellant.

ORDER AND JUDGMENT *

Before OBRIEN, EBEL, and GORSUCH, Circuit Judges.

Lealon Muldrow was convicted in 1993 of possessing 4.29 kilograms of

crack cocaine with the intent to distribute it. His total offense level was 42,
which, when combined with his criminal history category of V, yielded a
proposed sentence under the Guidelines of between 360 months to life

After examining appellants brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

imprisonment. The district court ultimately sentenced Mr. Muldrow to a term of

360 months.
In 2008, Mr. Muldrow filed a pro se motion under 18 U.S.C. 3582(c)(2),
arguing that he was eligible for a reduced sentence under Amendment 706 of the
Sentencing Guidelines. The Amendment effectively reduces crack cocaine
sentences by two base levels, see U.S.S.G. App. C Supplement, Amendment 706
(Nov. 1, 2007), and it applies retroactively, see id. at Amendment 713 (Mar. 3,
2008).
In his pro se motion, Mr. Muldrow also requested that the district court,
when resentencing him pursuant to Amendment 706, reconsider two sentencing
enhancements made in the course of his original sentence (one associated with the
fact Mr. Muldrow committed his crime in proximity to a school; the other for
obstruction of justice). Mr. Muldrow further asked the court to reconsider his
sentence in light of the fact that, since the time of his original sentencing hearing,
the Guidelines have been declared advisory rather than mandatory. See United
States v. Booker, 543 U.S. 220 (2005).
The district court denied Mr. Muldrows motion. First, it found that, even
with application of the Amendment, he still faced the same sentencing range, and
was thus ineligible for a sentence reduction under section 3582(c)(2). Second,
having denied resentencing under section 3582(c)(2), the court concluded it

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lacked authority to reopen and reconsider aspects of his original sentence

unrelated to Amendment 706. This appeal followed. 1
***
We review a district courts decision to deny a reduction in sentence under
18 U.S.C. 3582(c)(2) for abuse of discretion. United States v. Dorrough, 84
F.3d 1309, 1311 (10th Cir. 1996). Section 3582(c)(2) states that in the case of a
defendant who has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission . . . the court may reduce the term of imprisonment, after considering
the factors set forth in [18 U.S.C. ] 3553(a) to the extent that they are applicable,

Mr. Muldrows notice of appeal was filed outside the 10-day period
prescribed by Rule 4(b)(1)(A), but within the permissible 30-day extension
period. Mr. Muldrow asked for an extension of time, and a panel of this court
remanded the matter to the district court to determine if there was good cause or
excusable neglect for the delay sufficient to satisfy Rule 4(b)(4). The district
court entered an order finding good cause, and extending the deadline for Mr.
Muldrow to file his appeal to August 13, 2008 the date the notice of appeal was
filed. Because the government does not contest timeliness, we have no reason to
question the district courts order. See United States v. Garduno, 506 F.3d 1287,
1291 (10th Cir. 2007) (Rule 4(b)s timeliness requirement is a claim processing
rule which may be forfeited if not properly raised by the government).
We note additionally that Mr. Muldrows motion for appointment of
counsel, filed along with his notice of appeal, is denied. See Coronado v. Ward,
517 F.3d 1212, 1218 (10th Cir.), cert. denied, 129 S.Ct. 134 (2008) (There is no
constitutional right to counsel beyond the direct appeal of a criminal conviction);
see also United States v. Olden, 2008 WL 4596336 (Oct. 15, 2008) (same result
when appealing denial of 3582 motion).
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if such a reduction is consistent with applicable policy statements issued by the

Sentencing Commission. (emphasis added).
In turn, the Sentencing Commissions policy statement at U.S.S.G.
1B1.10(a)(2)(B) provides that a reduction is not consistent with this policy
statement, and therefore not authorized under 18 U.S.C. 3582(c)(2), when an
amendment listed in subsection (c) does not have the effect of lowering the
defendants applicable guidelines range. U.S.S.G. 1B1.10(a)(2)(B) (emphasis
added). Because Amendment 706 is listed in subsection (c), in deciding whether
a section 3852(c)(2) reduction is appropriate, the first question we must ask is
whether application of the Amendment would have the effect of lowering Mr.
Muldrows applicable Guidelines range.
Had Amendment 706 been in place at the time of Mr. Muldrows original
sentencing, it would have lowered by two levels his base offense level to 36,
rather than 38. Even so, Amendment 706 would have had no effect on the
remaining enhancements Mr. Muldrow received (a two-level adjustment
associated with conducting drug activities near a school under U.S.S.G.
2D1.2(a)(1) (Nov. 1, 1992), and another two-level adjustment for obstruction of
justice under U.S.S.G. 3C1.1 (Nov. 1, 1992)), which together would have
brought his base level to 40. When combined with his criminal history category
of V, an offense level of 40 would have still resulted in Mr. Muldrows
Guidelines sentencing range being 360 months to life in prison that is, exactly
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the same as it was without application of Amendment 706. Because Mr.

Muldrows Guidelines range is thus unchanged by application of Amendment 706,
he is ineligible for relief under section 3582(c)(2). See U.S.S.G. 1B1.10(b)(1);
United States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008) (district court did
not abuse its discretion in denying section 3582(c)(2) motion, where other
Guidelines provisions produced an offense level which did not alter the
Guidelines range from that originally determined by the sentencing court).
Mr. Muldrow argues that, even if he is ineligible for relief under section
3582(c), the district court should have reconsidered his other sentencing
enhancements. But, by its terms, section 3582(c)(2) forecloses the district court
from reconsidering any other Guidelines applications not specifically listed in
subsection (c). U.S.S.G. 1B1.10(b)(1) (Supp. May 1, 2008). And neither Mr.
Muldrows enhancement for conducting drug transactions near a school nor his
enhancement for obstructing justice are listed in subsection (c). We have
previously held in a similar situation that section 3582(c)(2) permits a court only
to consider whether a defendant is entitled to a two-level offense reduction under
Amendment 706, and not to reevaluate his sentence under the Guidelines.
United States v. Leroy, No. 08-5088, 2008 WL 4636725, at *3 (10th Cir. Oct. 21,
2008) (unpublished); see also United States v. Smartt, 129 F.3d 539, 542-43 (10th
Cir. 1997) (district court does not have jurisdiction under section 3582 to consider
collateral sentencing issues).
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Mr. Muldrow further asserts that the district court erred in refusing to
reconsider his sentence in light of the Supreme Courts intervening decision in
Booker and the renewed importance of the sentencing factors enumerated in 18
U.S.C. 3553(a). But because the district court lacked authority under section
3582(c)(2) to resentence him, it correctly held, consistent with our binding
precedents, that it had no occasion to consider the 18 U.S.C. 3553(a) factors.
Sharkey, 543 F.3d at 1239; see also United States v. Price, 438 F.3d 1005, 1007
(10th Cir. 2006) ([E]ven if Booker could be read to be an implicit lowering of
[defendants] sentencing range, 3582(c)(2) only expressly allows a reduction
where the Sentencing Commission, not the Supreme Court, has lowered the
range.).
Affirmed.

ENTERED FOR THE COURT

Neil M. Gorsuch
Circuit Judge

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